MACDONALD v. PKT, INC, et al.

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MACDONALD

v.

PKT, INC, et al.

JUNE 26, 2001

No. 114039

No. 115322

MOLLY MACDONALD,

Plaintiff-Appellee,

v

PKT, INC, known as PINE KNOB MUSIC

THEATER, and ARENA ASSOCIATES,

jointly and severally,

Defendants-Appellants,

and

CAPITAL CITIES/ABC, INC,

Defendant.

STEPHEN L. LOWRY,

Plaintiff-Appellant,

v.

CELLAR DOOR PRODUCTIONS OF MICHIGAN,

INC, a Michigan corporation, and

ARENA ASSOCIATES INC, d/b/a PINE

KNOB MUSIC THEATER, jointly and

severally,

Defendants-Appellees.

BEFORE THE ENTIRE BENCH

YOUNG, J.

I. Introduction

In these consolidated premises liability cases,
plaintiffs seek to recover for injuries they suffered when fellow
concertgoers at the Pine Knob Music Theater (Pine Knob), an
outdoor amphitheater that offered seating on a grass-covered
hill, began pulling up and throwing pieces of sod. We granted
leave to address the duty of premises owners concerning the
criminal acts of third parties.

Under Masonv Royal Dequindre, Inc,
455 Mich 391; 566 NW2d 199 (1997), merchants have a duty to
respond reasonably to situations occurring on the premises that
pose a risk of imminent and foreseeable harm to identifiable
invitees. We hold today that the duty to respond is limited to
reasonably expediting the involvement of the police and that
there is no duty to otherwise anticipate and prevent the criminal
acts of third parties. Finally, consistent with Williams v
Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381
(1988), and Scott v Harper Recreation, Inc, 444
Mich 441; 506 NW2d 857 (1993), we reaffirm that merchants are not
required to provide security personnel or otherwise resort to
self help in order to deter or quell such occurrences.

II. Factual and Procedural
Background

A. macdonald

In MacDonald, plaintiff Molly MacDonald
attended a concert on May 4, 1995, at Pine Knob at which several
bands were performing. Pine Knob offers seating on a
grass-covered hill, as well as seating in a pavilion. Plaintiff
received the tickets to the concert as part of a promotional
giveaway by a local radio station sponsoring the concert. When
plaintiff arrived at Pine Knob, she and a friend found a spot to
sit on the hill. While a band called Bush was performing, some
patrons began pulling up sod and throwing it.

Before the concert, the event coordinator had
asked the bands to stop performing in the event that the audience
members began throwing sod, and announce that the sod throwing
must stop. There were also flyers posted in the dressing rooms of
the bands requesting the bands to make an announcement to the
audience to stop throwing sod. Pursuant to that request, the band
finished the song and stopped performing, making an announcement
that unless the sod throwing stopped, the concert would not
continue. The crowd complied with the bands request, and
several individuals were ejected from Pine Knob for throwing sod.

While the next band, the Ramones, was
performing, the sod throwing resumed. After that band refused to
make an announcement to stop throwing sod, the event coordinator
turned on the house lights. When the sod throwing continued, the
band made an additional announcement demanding that it stop. Once
again, several individuals who were involved in throwing sod were
ejected from the theater. During the second incident of sod
throwing, plaintiff fractured her ankle when she fell while
attempting to avoid being struck by a piece of sod. Discovery
materials indicated that there had been two sod-throwing
incidents at previous concerts at Pine Knob, one incident in
1991, at a Lollapalooza concert, and another incident in 1994, at
a Metallica concert.[1]

Plaintiff filed a complaint against, among
others, PKT, Inc., also known as Pine Knob Music Theater and
Arena Associates.[2]Plaintiff alleged that Pine Knob was negligent in
failing to provide proper security, failing to stop the
performance when it should have known that continuing the
performance would incite the crowd, failing to screen the crowd
to eliminate intoxicated individuals, and by selling alcoholic
beverages. Pine Knob moved for summary disposition, arguing that
it did not have a duty to protect plaintiff from the criminal
acts of third parties. Meanwhile, plaintiff moved to amend her
complaint to add certain theories including design defect,
nuisance, and third-party beneficiary claims and to more
specifically set forth her negligence claim.

The trial court granted summary disposition for
Pine Knob pursuant to MCR 2.116(C)(8) and (10), but the Court of
Appeals reversed.[3]The Court of Appeals held that
the trial court erred in granting summary disposition in favor of
Pine Knob because there were fact questions for the jury
regarding whether the sod throwing incident created a foreseeable
risk of harm and whether the security measures taken by Pine Knob
were reasonable. The Court of Appeals reasoned that plaintiff
submitted evidence that there had been incidents of sod throwing
at previous concerts, that Pine Knob was aware of those
instances, and that it had formulated policies to deal with sod
throwing incidents before the concert. Regarding the question
whether security measures taken by Pine Knob were reasonable, the
Court of Appeals stated that plaintiff presented evidence
sufficient to survive summary disposition by submitting the
affidavit of an expert witness who stated that Pine Knob was
negligent by (1) failing to have adequately trained security
personnel properly positioned at the concert,[4]
(2) failing to summon the police to eject or arrest those
throwing sod, (3) failing to have a clear, written policy
regarding the sod throwing, (4) allowing the concert to continue
after the first incident, and (5) serving alcohol.

Finally, the Court of Appeals held that the
trial court abused its discretion in denying plaintiffs
motion to amend her complaint pursuant to MCR 2.116(I)(5). The
Court of Appeals stated that the proposed claims were legally
sufficient and were justified by the evidence. This Court granted
Pine Knobs application for leave to appeal.[5]

B. Lowry

In Lowry, plaintiff and a friend
attended a Suicidal Tendencies/Danzig/Metallica concert at Pine
Knob on June 22, 1994. Plaintiff suffers from multiple sclerosis
and uses the aid of two canes or a wheelchair. Plaintiff was
seated in the handicapped section at Pine Knob, which is located
at the rear of the pavilion immediately adjacent to the grass
seating. During the performance of Danzig, patrons seated on the
lawn of Pine Knob began throwing sod. Plaintiff was allegedly
struck with sod on the head and shoulders. Within a few minutes,
the band stopped performing and an announcement was made
requiring individuals to stop or the concert would not continue.
Alcohol sales were cut off. Deposition testimony indicated that
the sod throwing stopped within ten to fifteen minutes and
numerous individuals were ejected from Pine Knob.[6]

Plaintiff brought a negligence action against
Pine Knob, as well as Cellar Door Productions of Michigan, Inc.,
the producer of the concert, alleging that defendants failed to
protect plaintiff from the foreseeable dangers of sod throwing by
patrons. Plaintiff also alleged that defendants violated his
rights under the Michigan Handicappers Civil Rights Act
(MHCRA), (now: Persons With Disabilities Civil Rights Act), MCL
37.1101 et seq., by failing to adequately accommodate his
disability.

Defendants moved for summary disposition under
MCR 2.116(C)(8) and (10), arguing that they owed no duty to
protect plaintiff from the criminal acts of third parties, and
that plaintiffs handicap was fully accommodated. With
regard to plaintiffs premises liability claim, the trial
court granted summary disposition for defendants on the ground
that the sod throwing was unforeseeable and that defendants took
reasonable measures to protect their patrons. The trial court
also granted summary disposition for defendants on
plaintiffs handicapper discrimination claim, holding that
defendants provided plaintiff with full and equal utilization of
the facilities.

The Court of Appeals affirmed in an unpublished
per curiam decision.[7] As an initial
matter, the Court of Appeals noted that both the parties and the
trial court had failed to recognize that because Cellar Door was
not the owner of the premises, it could not have been negligent
under a premises liability theory.[8] By implication, the
Court also held that Cellar Door could not have violated
plaintiffs rights under the MHCRA. With regard to Pine
Knob, the Court of Appeals held that it owed no duty to protect
plaintiff because it was unforeseeable as a matter of law that
the crowd would throw sod at plaintiff during the concert. In
that respect, the Court of Appeals found that the instant case
was factually distinguishable from MacDonald because (1)
unlike MacDonald, in the instant case there was no
evidence whatsoever that defendants had formulated a specific
policy to deal with sod throwing incidents, (2) the sod throwing
incident in this case occurred before the incident in MacDonald,
and (3) in MacDonald, the plaintiff was injured during thesecond occurrence of sod throwing during the same concert,
whereas in this case, there were no incidents of sod throwing
during the prior evenings performance that involved the
same bands. The Court of Appeals also held that Pine Knob fully
accommodated plaintiffs disability.

One panel member dissented in part, arguing
that "[a]lthough plaintiff did not present evidence
regarding the number of previous sod throwing incidents or the
dates and circumstances surrounding those previous occurrences,
plaintiff nonetheless established the existence of a genuine
issue of material fact with respect to whether the sod throwing
incident at issue in this case was foreseeable." The dissent
further suggested that the reasonableness of Pine Knobs
conduct with respect to protecting the patrons with disabilities
from injuries should have been submitted to a jury.

We review de novo a trial courts decision
to grant or deny summary disposition. The Herald Co v Bay City,
463 Mich 111, 117; 614 NW2d 873 (2000). A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of
the complaint and allows consideration of only the pleadings. Wade
v Dept of Corrections, 439 Mich 158, 162; 483 NW2d 26
(1992). The motion should be granted only when the claim is so
clearly unenforceable as a matter of law that no factual
development could possibly justify a right of recovery. Id.
at 163.

A motion for summary disposition pursuant to
MCR 2.116 (C)(10) tests the factual support of a claim. Smith
v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
The motion should be granted if the evidence demonstrates that no
genuine issue of material fact exists, and that the moving party
is entitled to judgment as a matter of law. Id. at
454-455, quoting Quinto v Cross & PetersCo,
451 Mich 358, 362-363; 547 NW2d 314 (1996).

IV. The duties of a merchant

We recognized in Mason the general rule
that merchants "do not have a duty to protect their invitees
from unreasonable risks that are unforeseeable." Id.
at 398. Accordingly, we held that a duty arises only on behalf of
those invitees that are "readily identifiable as
[being] foreseeably endangered." Id., quoting Murdock
v Higgins, 454 Mich 46, 58; 559 NW2d 639 (1997). We further
held that the measures taken must be reasonable. Mason at
405. In the instant cases, we are called upon to further clarify
the duty that we articulated in Mason.

Mason and its companion case, Goodman
v Fortner, both involved altercations that began in bars. In Mason,
one of the plaintiffs friends, Dan Kanka, was involved in
an altercation with another man, Thomas Geoffrey. The plaintiff
was in a different area of the bar when the fight began, and only
witnessed its conclusion. The bars bouncers immediately
ejected Geoffrey and, in an attempt to avoid more conflict,
instructed Kanka to remain until Geoffrey left the premises. When
the plaintiff left the bar some time later, Geoffrey assaulted
him in the parking lot, breaking his nose and jaw. Id. at393-394. We upheld the dismissal of the plaintiffs
resulting premises liability claim on the ground that, because
the plaintiff was not near the area where the initial fight
occurred (and the defendant had no knowledge that the plaintiff
was associated with either Kanka or Geoffrey), the defendant had
no reason to believe that the plaintiff was in danger. Even
viewed in a light most favorable to the plaintiff, we held that
the facts did not support a finding that the attack on the
plaintiff was foreseeable. Id. at 404.

In Goodman, the plaintiffs
girlfriend, Theresa Woods, was involved in a bar room scuffle
with the plaintiffs former girlfriend and mother of his
child, Joslynn Lewis. The fight continued in the parking lot and
then moved back inside the bar, with two of Lewis relatives
joining the fray. Despite repeated requests that they call the
police, the bars bouncers refused, although they did remove
Lewis and her group from the bar. When the plaintiff and Woods
attempted to leave the bar, Lewis and her friends were waiting
out in the parking lot, yelling at the plaintiff and threatening
to kill him. There was evidence that the bouncers standing at the
door could undoubtedly hear the commotion. One of Lewis
friends eventually shot the plaintiff in the chest. Id. at
395-396. We upheld a jury verdict in the plaintiffs favor
on the ground that a reasonable jury could find that the harm to
the plaintiff was foreseeable. We also held that a reasonable
jury could find that the defendant did not take reasonable steps
to prevent the plaintiffs injury. Id. at 404-405.

As we made clear in Williams and Scott,
a merchant has no obligation generally to anticipate and prevent
criminal acts against its invitees. Indeed, as the Court of
Appeals panel in Lowry correctly noted, we have never
recognized as "foreseeable" a criminal act that did
not, as in Goodman, arise from a situation occurring on
the premises under circumstances that would cause a person to
recognize a risk of imminent and foreseeable harm to an
identifiable invitee. Consequently, a merchants only duty
is to respond reasonably to such a situation. To hold
otherwise would mean that merchants have an obligation to provide
what amounts to police protection, a proposition that we soundly
rejected in both Williams and Scott. To the extent
that, in Goodman, we relied upon evidence of previous
shootings at the bar in assessing whether a reasonable jury could
find that the Goodman plaintiffs injury was
foreseeable, we now disavow that analysis as being flatly
inconsistent with Williams and Scott.

A premises owners duty is limited to
responding reasonably to situations occurring on the premises
because, as a matter of public policy, we should not expect
invitors to assume that others will disobey the law. A merchant
can assume that patrons will obey the criminal law. See People
v Stone, 463 Mich 558, 565; 621 NW2d 702 (2001), citing
Prosser & Keeton, Torts (5th ed) § 33, p 201; Robinson
v Detroit, 462 Mich 439, 457; 613 NW2d 307 (2000); Buzckowski
v McKay, 441 Mich 96, 108, n 16; 490 NW2d 330 (1992); Placek
v Sterling Hts, 405 Mich 638, 673, n 18; 275 NW2d 511 (1979).
This assumption should continue until a specific situation occurs
on the premises that would cause a reasonable person to recognize
a risk of imminent harm to an identifiable invitee. It is only a
present situation on the premises, not any past incidents, that
creates a duty to respond.

Subjecting a merchant to liability solely on
the basis of a foreseeability analysis is misbegotten. Because
criminal activity is irrational and unpredictable, it is in this
sense invariably foreseeable everywhere. However, even police,
who are specially trained and equipped to anticipate and deal
with crime, are unfortunately unable universally to prevent it.
This is a testament to the arbitrary nature of crime. Given these
realities, it is unjustifiable to make merchants, who not only
have much less experience than the police in dealing with
criminal activity but are also without a community deputation to
do so, effectively vicariously liable for the criminal acts of
third parties.

Having established that a merchants duty
is to respond reasonably to criminal acts occurring on the
premises, the next question is what is a reasonable response?
Ordinarily, this would be a question for the factfinder. However,
in cases in which overriding public policy concerns arise, this
Court may determine what constitutes reasonable care.See
Williams, supra at 501, citing Moning v Alfono, 400
Mich 425, 438; 254 NW2d 759 (1977). Because such overriding
public policy concerns exist in the instant cases, the question of
reasonable care is one that we will determine as a matter of law.Williams, supra at 501. We now make clear that, as a
matter of law, fulfilling the duty to respond requires only that
a merchant make reasonable efforts to contact the police. We
believe this limitation is consistent with the public policy
concerns discussed in Williams.

In Williams, supra, the plaintiff
was shopping in the defendants store when an armed robbery
occurred. As the plaintiff, a store patron, attempted to flee,
the robber shot him. The plaintiff sued the defendant store,
alleging that it breached its duty to exercise reasonable care in
part by not providing armed and visible security guards for the
security of the stores patrons. Id. at 497. This
Court held that a merchants duty of reasonable care does
not include providing armed, visible security guards to deter
criminal acts of third parties. Id. at 501. We reasoned
that such a duty is vested in the government alone, and that to
shift the burden to the private sector "would amount to
advocating that members of the public resort to self-help. Such a
proposition contravenes public policy." Id. at
503-504. We further explained that

[t]o require defendant to provide armed,
visible security guards to protect invitees from criminal acts in
a place of business open to the general public would require
defendant to provide a safer environment on its premises than its
invitees would encounter in the community at large. Defendant
simply does not have that degree of control and is not an insurer
of the safety of its invitees. [Id. at 502.]

The rationale of this Court in Williams
for not requiring merchants to provide security guards to protect
invitees from the criminal acts of third parties is the same
rationale for not imposing on merchants any greater obligation
than to reasonably expedite the involvement of the police. That
is, the duty to provide police protection is vested in the
government. Williams, supra at 501. To require a merchant
to do more than take reasonable efforts to expedite the
involvement of the police, would essentially result in the duty
to provide police protection, a concept that was rejected in Williams.

Merchants do not have effective control over
situations involving spontaneous and sudden incidents of criminal
activity. On the contrary, control is precisely what has been
lost in such a situation. Thus, to impose an obligation on the
merchant to do more than take reasonable efforts to contact the
police is at odds with the public policy principles of Williams.

In Scott, supra at 452, we
expanded on this theme by holding that, even where a merchant
voluntarily takes safety precautions in an effort to prevent
criminal activity, "[s]uit may not be maintained on the
theory that the safety measures are less effective than they
could or should have been." Consequently, in any case in
which a factfinder, be it the trial court or a jury, will be
assessing the reasonableness of the measures taken by a merchant
in responding to an occurrence on the premises, a plaintiff may
not present evidence concerning the presence or absence of
security personnel, or the failure to otherwise resort to
self-help, as a basis for establishing a breach of the
merchants duty. A jury thus must be specifically instructed
in accordance with the principles of Williams and Scottas we have outlined them here.

To summarize, under Mason, generally
merchants "have a duty to use reasonable care to protect
their identifiable invitees from the foreseeable criminal acts of
third parties." Id. at 405. The duty is triggered by
specific acts occurring on the premises that pose a risk of
imminent and foreseeable harm to an identifiable invitee. Whether
an invitee is readily identifiable as being foreseeably
endangered is a question for the factfinder if reasonable minds
could differ on this point. See id. at 404-405. While a
merchant is required to take reasonable measures in response to
an ongoing situation that is taking place on the premises, there
is no obligation to otherwise anticipate the criminal acts of
third parties. Consistent with Williams, a merchant is not
obligated to do anything more than reasonably expedite the
involvement of the police. We also reaffirm that a merchant is
not required to provide security guards or otherwise resort to
self help in order to deter or quell such occurrences. Williams,
supra.

V. Application

A. macdonald

The Court of Appeals in MacDonald held
that plaintiff presented sufficient evidence to create a genuine
issue of material fact concerning whether the harm to her was
foreseeable. We agree that plaintiff created a jury-submissible
issue concerning whether she was readily identifiable as being
foreseeably endangered once the sod throwing began. However, we
reject the Court of Appeals reliance on incidents previous to the
day in question as a basis for concluding that sod throwing was
"foreseeable" in this instance. The Mason duty,
as clarified here, is not based upon the general question whether
a criminal act was foreseeable, but, rather, once a disturbance
occurs on the premises, whether a reasonable person would
recognize a risk of imminent harm to an identifiable invitee. As
stated, a merchant has no obligation to anticipate the criminal
acts of third parties.

The Court of Appeals also held that a genuine
issue of material fact exists concerning whether Pine Knob took
reasonable measures in response to the sod throwing. We disagree.
Because Pine Knob already had the police present at the concert,
Pine Knob fully discharged its duty to respond. Thus, we reverse
the Court of Appeals decision denying Pine Knobs motion for
summary disposition and reinstate the trial courts decision
to grant summary disposition for Pine Knob pursuant to MCR
2.116(C)(8) and (10).

We also reverse the Court of Appeals decision
that the trial court abused its discretion in denying
plaintiffs motion to amend her complaint to add certain
theories including design defect, nuisance, and third-party
beneficiary claims and to more specifically set forth her
negligence claim. We conclude that plaintiffs amendment
would have been futile.

B. Lowry

In contrast with MacDonald, the Court of
Appeals panel in Lowry relied solely on the absence
of evidence concerning previous incidents of sod throwing to
uphold the trial courts decision granting summary
disposition for Pine Knob. This too was error. Whether Pine Knob
could have anticipated that sod throwing would be a problem does
not answer the legally relevant question whether plaintiff Lowry
was foreseeably endangered once sod throwing began on the day of
plaintiffs attendance. However, in accordance with this
opinion, because Pine Knob already had the police at the concert,
we hold that Pine Knob had no further obligation. Pine Knob
discharged its duty to respond by having police present once the
sod throwing began. Thus, we affirm the Court of Appeals
affirmance of the trial courts decision to grant summary
disposition in favor of Pine Knob. We also affirm the Court of
Appeals decision to uphold summary disposition in Pine
Knobs favor on plaintiffs handicapper discrimination
claim. We agree that Pine Knob fully accommodated
plaintiffs disability.

VI. Response to the Dissent

The dissent accuses us of "uproot[ing] the
entire basis for imposing a duty on merchants to protect their
invitees that we expressed in Mason . . . ." Slip op,
pp 4-5. We disagree.

The principal difference between the dissent
and the majority lies in our respective attempts to reconcile our
several premises liability cases and the policies that undergird
them. The dissent seeks in effect to limit or ignore the holdings
of Williams and Scott. The majority refuses to do
so.

In its effort to explain away the tort duty
policy choices this Court adopted in Williams and Scott,
the dissent reads into Mason rationales and holdings the
dissent would have liked Mason to have adopted but which
that opinion plainly did not embrace.

We believe that the actual policy rationales ofWilliams and Scott must be reconciled with the
merchants duty set forth in Mason. In reconciling
these cases, we seek to establish a clear rule. We reject the
premises liability rule that the dissent proposes because (1) it
provides little guidance to any premises owner concerning its
obligations under law and (2) despite its claims to the contrary,
the dissents rule would unfairly expose merchants in
high-crime areas to excessive tort liability and increase the
pressure on commercial enterprises to remove themselves from our
troubled urban and high-crime communities. Mason
undeniably cites 2 Restatement Torts, 2d, § 344, and
comment f.Further, our rejection of § 344, and comment f, is
consistent with the overriding public policy concerns discussed
in this opinion.

However, in quoting that section and comment of
the restatement, the Mason majority did not
"recognize" the imposition of a duty on a merchant to
protect its invitees from criminal conduct of third parties as
being "contingent upon whether the character of his
business, or past experience . . . gives the merchant knowledge
or reason to know that those acts may occur again." Slip op,
p 4. Other than in the text of the restatement, the
"character of the merchants business" is not even
discussed in Mason. Nor did we "implicitly note"
in Mason that a careful consideration of the facts in each
case, namely, the nature of the harm, etc., is essential in
determining whether a § 344 analysis is justified. Thus, the
dissent ingeniously injects concepts into Mason that
clearly were not adopted by the Mason court.

The dissent attempts to distinguish Williams fromMason and the instant cases by explaining that Williams involved
"random crime" "unrelated to the character
of the merchants business", slip op, p 8, and
asserting that the sod-throwing incidents in these cases were
"related" to Pine Knobs business because the
nature of the harm was created by the "character" of
its business. We do not agree with the dissents focus on
the "randomness" or spontaneity of a criminal act as
being a relevant factor in determining whether an occurrence was
foreseeable. The key inquiry is not whether the criminal act was
"random," but rather whether, as stated in Mason,
the merchant has reason to recognize a risk of imminent harm to
an identifiable invitee. In Williams, the merchant had no
reason to expect the criminal attack. In Mason, we
distinguished Williams and Scott by explaining that
in Williams and Scott "[t]he merchants had had
no previous contact with the assailants and could not have
determined that the plaintiffs were in danger." Mason,
supra at 402. The rule set forth in this opinion is thus
consistent with Mason as well as Williams and
Scott: A merchant should not be expected to anticipate any
type of criminal activity, whether "random" or
otherwise, before there is some specific activity on
the premises creating a foreseeable risk of imminent harm to an
identifiable invitee. The merchant then must make efforts to
notify those deputized to deal with such circumstances: the
police.

Moreover, none should be mistaken that the test
of "relatedness" proposed by the dissent would apply,
if not now, then very soon, to virtually all criminal acts
in commercial establishments. It cannot be questioned that there
can always be, given crimes unfortunate pervasiveness, a
plausible argument that the criminal being drawn to the business
enterprise at all makes it "related" in such a way as
to trigger liability. Surely after one crime has occurred on the
premises, or even in a similar business, with the criminal having
been arguably drawn to that business, the "relatedness"
test will be met. Indeed, probably even more attenuated linkages
(the crime rate in the area comes to mind) will suffice, as the
law develops, to establish "relatedness." This will all
mean, and it was this the Williams and Scott courts
understood, that urban merchants will be exposed to crippling
tort liability.

Thus, the dissents rule would have its
most pernicious and devastating effect on the many commercial
businesses that are located in Michigans urban and
high-crime areas. Avoiding this kind of adverse effect was one of
the Courts primary concerns when it adopted the Williams
and Scott principles. It simply cannot be gainsaid
that businesses in urban and high-crime areas do foresee that
criminals may attack their establishmentsopportunistically
or with premeditation. Indeed, the fact that many businesses in
our urban and high-crime areas erect barriers to protect their
employees is ample proof that they actually anticipate
crime occurring in their establishments. Plainly stated, their
precautions give proof that they understand that criminal acts in
their establishments are not "random" as the dissent
would understand it, but rather are foreseeable risks related to
the business.

For these policy reasons, we, as the courts
before us, decline to adopt the dissents proposed rule.

VII. Conclusion

Consistent with our decisions in Williams,Scott, and Mason, we conclude that merchants have a
duty to respond reasonably to situations occurring on the
premises that pose a risk of imminent and foreseeable harm to
identifiable invitees. We hold that the duty to respond is
limited to reasonably expediting the involvement of the police,
and that there is no duty to otherwise anticipate the criminal
acts of third parties. Finally, we reaffirm that merchants are
not required to provide security personnel or otherwise resort to
self-help in order to deter or quell such occurrences.

In MacDonald, we reverse the Court of
Appeals decision denying summary disposition. In Lowry,
the decision of the Court of Appeals to grant summary disposition
for Pine Knob is affirmed.

The majority holds that under Mason v Royal
Dequindre, Inc, 455 Mich 391; 566 NW2d 199 (1997), a merchant
has a duty to "respond reasonably to situations occurring on
the premises that pose a risk of imminent and foreseeable harm to
identifiable invitees," and the duty to respond entails
nothing more than the merchants attempt to contact the
police. Slip op at 2. This artful formulation of the Mason duty
removes any inquiry into prior similar occurrences as part of the
foreseeability analysis, reducing the foreseeability question to
whether a merchant should have known that an ongoing occurrence
on the premises could have harmed an identifiable invitee.
Because the majority created this formulation of the Mason
duty with brazen disregard for the principles that created it, I
respectfully dissent.

I

In Mason, we had to determine whether
merchants have a common-law duty to protect their patrons from
criminal acts of third parties. To resolve this question, we
examined the rationale behind imposing a duty on a person to
protect another person endangered by a third partys
conduct. Generally, a person has no duty to protect another
person endangered by a third partys conduct unless there is
a special relationship between those persons. The reason for this
exception to the general no-duty rule when a special relationship
is present is based on control. As we explained, "In each
situation one person entrusts himself to the control and
protection of another, with a consequent loss of control to
protect himself. The duty to protect is imposed upon the person
in control because he is best able to provide a place of
safety." Mason at 398. Thus, while merchants are not
insurers of their invitees safety, we recognized that
courts will impose a duty on a merchant to protect its invitees,
like the duty imposed when a special relationship is present,
when they are "readily identifiable as [being] foreseeably
endangered." Id. at 398, quoting Murdock v Higgins,
454 Mich 46, 58; 559 NW2d 639 (1997).

After exploring the basis for imposing a duty
on a merchant to protect its invitees, we explained that these
same principles are embodied in 2 Restatement Torts, 2d, § 344,
pp 224-225, and comment f to § 344, pp 225-226. The
Restatement further explains how control and foreseeability
govern a landowners liability to its invitees. Section 344
provides:

A possessor of land who holds it open to the
public for entry for his business purposes is subject to
liability to members of the public while they are upon the land
for such a purpose, for physical harm caused by the accidental,
negligent, or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to exercise
reasonable care to

(a) discover that such acts are being done or
are likely to be done, or

(b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to protect them against
it.

Comment f to § 344 states:

Since the possessor is not an insurer of the
visitors safety, he is ordinarily under no duty to exercise
any care until he knows or has reason to know that the acts of
the third person are occurring, or are about to occur. He may,
however, know or have reason to know, from past experience, that
there is a likelihood of conduct on the part of third persons in
general which is likely to endanger the safety of the visitor,
even though he has no reason to expect it on the part of any
particular individual. If the place or character of his business,
or his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of third
persons, either generally or at some particular time, he may be
under a duty to take precautions against it, and to provide a
reasonably sufficient number of servants to afford a reasonable
protection.

In quoting § 344 and comment f, we recognized
that the imposition of a duty on a merchant to protect its
invitees from criminal conduct of third parties is contingent
upon whether the character of his business, or past experience
either in general or at a specific time, gives the merchant
knowledge or reason to know that those acts may occur again. As
noted in the quoted sections of the Restatement, this analysis
includes a consideration of whether such acts had occurred in the
past.

Following these premises liability principles,
we held that "merchants can be liable in tort for failing to
take reasonable measures to protect their invitees from harm
caused by the criminal acts of third parties. The harm must be
foreseeable to an identifiable invitee and preventable by the
exercise of reasonable care." Id. at 393. Clearly,
our holding in Mason was premised on tort principles that
require a look into the character of the merchants business
and prior similar occurrences to determine whether the harm is
foreseeable.

The majority introduces a version of the Mason
duty that ignores the basis of our holding in Mason and
instead holds that under Mason, a merchant has a duty to
respond to ongoing frays on the premises, and the duty is only to
make an effort to contact the police. This formulation
essentially uproots the entire basis for imposing a duty on
merchants to protect their invitees that we expressed in Masonby extinguishing the consideration of the character of the
merchants business and prior similar occurrences when
deciding if the harm was foreseeable. Instead, the majority
limits the foreseeability question to whether this particular
fray would have harmed this particular plaintiff, without citing
any legal support for its decision to alter the duty.

In reformulating the Mason duty, the
majority overrules Mason to the extent that it relied on
§ 344 and comment f of the Restatement which clearly refutes the
majoritys clarified version of the Mason duty. Slip
op at 13, n 10. The reason the majority states for overruling
this part of Mason is that § 344 and comment f are
contrary to our holding in Williams v Cunningham Drug Stores,
Inc, 429 Mich 495; 418 NW2d 381 (1988). In Williams,
we stated that merchants are not ordinarily responsible for
criminal acts of third parties because it is against public
policy to require a merchant to anticipate crime in the community
that may harm its invitees. The majority claims that the only way
to reconcile Williams with the Mason holding that a
merchant may be liable when the criminal act that harmed its
invitee was foreseeable is to say that a merchant only has a duty
to "respond reasonably to such a situation." Slip op at
12-13. Furthermore, the majority concludes that the duty entails
only making an effort to contact the police because Williams
prevents the imposition of any further act. The majority fails to
recognize, however, that a new formulation of the Mason duty
is not necessary in light of Williams because we
distinguished Williams when we decided Mason.

According to the majority, Williams closed
the door to applying § 344 when deciding whether a merchant has
a duty to protect its invitees from criminal acts because
merchants cannot anticipate crime. A close reading of Williams,
however, reveals that is not true. In Williams, we
recognized § 344, but refused to apply it to the facts because
the nature of the harm, random crime in the community unrelated
to the merchants business, presented the merchant with no
degree of control over its prevention. Williams at 501, n
15. Thus, contrary to the majoritys assertion, we
recognized in Williams that application of § 344 depends
on the facts of a case, i.e., the nature of the harm and degree
of control a merchant had in each case.

In Mason, we discussed the Williamsdecision and cited Justice Levins dissent in Alexander
v American Multi-Cinema, 450 Mich 877; 540 NW2d 674 (1995),
as support for distinguishing the Williams holding. Mason
at 401-402, n 5. In Alexander, a theater patron was
injured in a scuffle with another patron who was standing in line
for a late night show. Justice Levin dissented from the
majoritys decision to deny leave, stating that he would
grant leave to discuss a merchants duty to protect its
invitees from the criminal acts of third parties. Quoting § 344,
Justice Levin explained that, although no invitor is
automatically liable for criminal acts of third parties on the
invitors property, an invitor has a duty to act reasonably
to protect invitees from foreseeable hazards. Alexander
at 879-880. Distinguishing Williams on its facts, Justice
Levin explained that the merchant in Williams was not
faced with a foreseeable altercation because the merchant had no
control over the random, spontaneous nature of the harm. Thus, Williams
addressed "the random assault bearing no relation to the
merchants business, and did not address the merchants
liability for risks created by the merchants
business." Id. at 882. Noting that this distinction
is relevant, Justice Levin stated that although we have held that
"a merchant is not ordinarily required to protect
customers from the criminal acts of third persons, . . . [i]f one
assumes that a situation created by the defendant will be
classified as extraordinary, the distinction then becomes
relevant." Id. at 881 (emphasis added). Thus, if the
merchant created the situation that led to the harm, the
situation can be treated as extraordinary and a merchant can be
liable for the criminal acts that harmed its patrons, if the acts
were foreseeable. Justice Levin noted that the facts in Alexandercreated such an extraordinary situation because the scuffle
between the patrons waiting in line "was foreseeable in
light of the owners considerable experience with crowd
control in general, and handling and organizing the pretheater
crowd in particular." Id.

Contrary to the majoritys assertion that
the Mason holding is inconsistent with Williams, inMason we recognized Justice Levins dissent in Alexanderas the method to distinguish the Williams holding and
created a duty based on § 344 that essentially focused on the
nature of the harm, the foreseeability of the harm, and the
control a merchant has over the harm. We implicitly noted that a
careful consideration of the facts in each case is essential to
determine whether a § 344 analysis is justified. If the nature
of the harm is random and spontaneous, and thus unrelated to the
character of the merchants business, the merchant cannot be
expected to foresee its occurrence, and reference to prior
similar occurrences is not justified. If the nature of the harm
was created by the character of the merchants business,
reference to prior similar occurrences is justified because a
merchant can be expected to foresee such harm happening again, in
light of his prior experience with such acts. Accordingly, we
concluded that "merchants have a duty to use reasonable care
to protect their identifiable invitees from the foreseeable
criminal acts of third parties." Mason at 405. Our
decision in Mason was therefore clearly based on a careful
consideration of the common-law tort principles of control and
foreseeability, as articulated in § 344, and how they
coexist with the holding in Williams. Thus, clarification
of the Mason duty is not necessary, as that decision
clearly acknowledged how the control and foreseeability origins
of § 344 may apply to certain factual scenarios without
violating our holding in Williams.

II

As the preceding discussion illustrates,
premises liability law contains many nuances that, without
complete consideration, may appear inconsistent. The majority has
seized on this apparent, but vacuous, inconsistency and held that
a clarification is necessary in this area of law. However, read
closely, the principles have distinguishing characteristics that
allow them to exist without conflict in three separate
categories.

(1) Traditional Premises
Liability

Traditionally, a merchant has had a duty to
protect its invitees from defects or dangerous conditions on the
land of which the merchant knew or had reason to know.

(2) Hybrid Premises Liability

Under hybrid premises liability, a merchant has
a duty to protect its invitees from activities involving actors
on the premises of which a merchant knew or had reason to know.
The tricky part, however, is when the activity consists of
criminal acts by third parties. If the activity on the land is a
criminal act, it must be determined whether the character of the
merchants business and the nature of the act are of a sort
that a merchant could be expected to anticipate. If the nature of
the criminal act is random, spontaneous, and thus unrelated to
the merchants business and the invitees purpose for
being there, the situation falls into category three, discussed
below. If, however, the nature of the criminal act is not random
or spontaneous, and is related to the merchants business
and the invitees purpose on the premises, as explained in Masonand Justice Levins dissenting opinion in Alexander, we
resort to the control and foreseeability origins of § 344 to
determine whether the merchant has a duty. See Prosser &
Keeton, Torts (5th ed), § 61, p 428 (stating that a
possessor of land is required to take action when he has reason
to believe, from what he has observed or from past experience,
that the conduct of others on the land will be dangerous to other
invitees, but not when the landowner cannot anticipate the harm).

(3) The Exception To Hybrid
Liability

The exception to hybrid liability is when there
is a criminal act by third parties on the premises, but the act
is random and spontaneous, having no relation to the
merchants business other than that it is a business, the
merchant has no duty. In the exception situation, the random,
spontaneous nature of the act removes any degree of control a
merchant has over the act occurring, thus making any application
of the control and foreseeability origins of § 344 improper.
See, e.g., Williams.

III

The facts of these cases must be examined to
determine which of the three premises liability categories
governs. Because the harm did not result from a physical defect
on the premises, the act does not fall within the traditional
premises liability category. Rather, the harm resulted from
activity on the land, potentially criminal in nature, which
requires us to decide whether the nature of the act qualifies it
as a hybrid or exception situation. The character of defendant
Pine Knobs business created the risk of harm to its
invitees, by subjecting its patrons to view concerts in a venue
where sod throwing had previously occurred. The sod throwing in
these cases was, therefore, not random or spontaneous, was
related to the invitees purpose on the premises, qualifying
these cases under the hybrid category, and thus justifies
applying the control and foreseeability origins of § 344.

Pine Knob charges its patrons to enter its
forum to watch concerts, where part of the seating area for
patrons is a sod-covered hill. Once the patron sets foot inside
the venue, he has entrusted himself to the control and protection
of Pine Knob, and his ability to protect himself from activities
that may occur on the premises diminishes. Thus, contrary to the
majoritys claim, Pine Knob has better control over the
activities of patrons it has chosen to host than the patrons
themselves. The potentially criminal activity in these cases that
occurred in this controlled environment was patrons ripping up
sod from the hill and throwing it. The question becomes whether
this act arose from the character of Pine Knobs business,
or was random or spontaneous. The majority has manipulated the
class of activity at issue in this case, sod throwing, to be
strictly criminal. In so doing, the majority ignores the fact
that this activity, albeit potentially criminal, only occurred
because of the nature of Pine Knobs business. In other
words, a patron at Pine Knob would not be subjected to injury
from such a concert activity like sod throwing if he were not
present on Pine Knobs premises; it is unique to Pine
Knobs business. Because Pine Knob charged a fee for entry,
subjected its patrons to seating on sod-covered ground,
sod-throwing acts had occurred before, and the harm suffered was
a result of plaintiffs purpose on the premises and the
nature of Pine Knobs business, to watch concerts at such a
venue, I would find this an "extraordinary" situation,
unlike that in Williams. These factors justify imposing a
duty on Pine Knob. Pine Knob not only created the risk of harm to
its invitees, but it had reason to know that such sod throwing
may occur again, on the basis of its prior experience with such
activity. This act is therefore unlike the random, spontaneous
criminal act that occurred in Williams, which had nothing
to do with the nature of the store owners business, and the
concerns of applying the control and foreseeability concepts do
not arise. It thus becomes clear that the majoritys
overstated concern for subjecting merchants in high crime areas
to increased liability is misplaced. Random crimes in the
community are unique to the community, not to the businesses
present in that community. Hence, the initial analysis, as
proposed by Justice Levin and further explained in § 344,
focuses on whether the act that injured the patron is unique to
the merchants business, not the location of the
merchants business. If the act is unique to the
merchants business, only then is it justifiable to say that
the merchant has control over such acts and, thus, can foresee
such future occurrences. Thus, retaining the control and
foreseeability origins of § 344 in this situation does not
vitiate the Williams holding, and Pine Knob should be held
liable if a jury finds that the sod throwing was a foreseeable
act and Pine Knob failed to take reasonable measures to protect
its invitees from such foreseeable harm.

IV

Today the majority embarks on the unnecessary
journey of clarifying the duty a merchant has to protect its
invitees from criminal acts of third parties, as discussed in Mason.
This clarification takes premises liability into an unfounded
direction with far-reaching consequences. Defendant humane
society allows persons interested in adopting animals to observe
the animals through cages. There is a separate "dog
wing" in which all the dogs are kept in individual cages.
Patrons on the premises interested in adopting a dog are allowed
access to the dog wing. A patron who is visiting the dog wing
gets increasingly passionate about the dogs being cooped up and
breaks open each cage, setting the dogs free. The dogs become
scared and attack a family who was there adopting their new pet.
Unfortunately, one of the children is severely injured. The
humane society is familiar with this "passionate
patron" syndrome, and it in fact occurred the previous day,
killing a patron. Luckily for the humane society, under the
majoritys clarified Mason duty, this previous attack
will not be considered, regardless of the number of times the
attacks have happened, the humane societys experience with
controlling the animals on its premises, and the experience the
humane society has with the harm caused by "passionate
patrons." Rather, in the midst of watching the dogs
viciously attacking patrons, all the humane society must do to
avoid liability to the injured patrons is to make the effort to
call the police. Thus, even though the character of the business
created the risk of harm, the humane society had past experience
with such mishaps, and the degree of control the humane society
has over its patrons was great, there is no duty to protect. I
cannot agree that this is a proper formulation of the duty. By
eradicating the two profound tenets behind the Mason duty,
control and foreseeability, the majority has created an
unprecedented formulation of the duty providing that if the act
that caused the harm could be charged as criminal, the merchant
can never be liable if it attempts to contact the police. Such a
conclusion ignores an entire category of criminal acts that arise
solely because of the character of the merchants business
and the invitees purpose on the premises. Because this was
clearly not intended when we created the Mason duty, I
dissent.

In accordance with the original, unclarified Masonduty, in both of the instant cases I would deny summary
disposition so that a jury may determine (1) whether the sod
throwing was foreseeable, (2) whether the plaintiffs were
identifiable invitees, and (3) whether defendant Pine Knob took
reasonable measures to protect its invitees from the harm.

[1]The 1994 sod-throwing incident
resulted in the lawsuit at issue in Lowry.

[2]Although not fully explained by
the parties, apparently Pine Knob Music Theater and Arena
Associates is one entity. Capital Cities/ABC, Inc., the owner of
the radio station that sponsored the concert, was dismissed as a
party defendant from the case early on and is not a party to this
appeal.